So, the Kagan confirmation hearings won’t really be about Elena Kagan. According to Sheryl Gal Stolberg of the New York Times, the hearings will be the launch of the midterm elections.
With an eye on the midterm elections, Democrats will use Ms. Kagan’s hearings, which begin Monday, to put the Roberts court on trial by painting it as beholden to corporate America.
Republicans will put Mr. Obama on trial over what they view as his Big Government agenda, and will raise questions about whether Ms. Kagan, his solicitor general and former dean of Harvard Law School, is independent enough to keep that agenda in check.
The Democrats will focus on actual rulings of the Roberts Court.
Leading up to the hearings, Democrats have been ticking off a litany of what Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, calls “wrong-headed decisions” in cases like Citizens United v. Federal Election Commission, which lifted limits on corporate campaign spending, and Ledbetter v. Goodyear Tire and Rubber Company, a suit alleging sex discrimination in salary that was thrown out by the court.
Mr. Obama set the stage for the debate when, shortly before nominating Ms. Kagan, he accused the Roberts court of a brand of conservative judicial activism. Democrats are echoing that language; Mr. Leahy, for instance, complained of a “conservative activist majority” in the court when he previewed the hearings for reporters last week.
Republicans will be attacking ’empathy.’
When he nominated Ms. Kagan, he called her someone who understands the law “as it affects the lives of ordinary people.” The phrase was a new twist on an idea Mr. Obama used last year when he nominated Justice Sotomayor and argued that judges must show empathy.
In the starkest terms, said Ed Whelan, the president of the Ethics and Public Policy Center, a conservative research organization here, the Kagan hearings may come down to the standards for judging set forth by the president and the chief justice. It will be, Mr. Whelan said, “the battle between the empathy standard and the umpire analogy.”
The ‘umpire analogy’ is a reference to Chief Justice John Roberts’s confirmation hearings when he said it was his job to call balls and strikes, not to hit or pitch. The Republicans seen to think this was a profound and illuminating judicial philosophy. They also think it precludes a judge from emphasizing with the people who seek redress for injustices in the courts.
Mostly, the hearings will just be painful political theater.
Although Ms. Kagan is almost certain to be confirmed, and her nomination will hardly supersede issues like the economy and jobs, Republicans see the court fight as a way to energize their base, especially conservative Tea Party activists disenchanted with Mr. Obama.
I question whether the Republicans truly plan to use the court fight to rally their Tea Party wing. Normally, the courts are the motivating factor for their socially conservative wing.
Either way, both sides will make the argument that a judge should do things on the bench that the legislature is incapable of doing themselves. For the Tea Partiers, they want all laws struck down and ruled unconstitutional. The social conservatives want abortion banned. And the Democrats want to see civil rights protected that they are incapable of protecting on their own.
Our politics are broken, and these stupid court hearings only highlight that fact.
